12 Kan. 601 | Kan. | 1874
The opinion of the court was delivered by
The only rulings of the district court of which the plaintiff in error (defendant below) now complains-are, the admission of certain evidence at the trial, and the-overruling of its motion for a new trial. We think however that no substantial right of the plaintiff in error was prejudicially affected by these rulings. The action was for injuries done to real estate by overflowing the same. Walker, defendant in error, was never in actual and personal possession of the property. But he was in possession of the same by his tenants, to whom he .had leased the same. He had rented the property'to these tenants, and they were in the actual possession thereof. And he claimed ownership to the property as against all the world. On the other hand the plaintiff in error claimed no interest in the property whatever.- Now, admitting for the sake of the argument that the documentary evidence of Walker, introduced for the purpose of showing title in himself, was not sufficient for that purpose, and still, upon the foregoing facts, Walker should have recovered for the injuries actually done to his land. Admitting for the sake of the argument, that the court below erred in admitting said evidence, and still no substantial right of the plaintiff in error was prejudiced thereby. Possession by a tenant was probably never sufficient to enable
The present action is not in its nature an action of trespass ■quare clausum fregit. Probably the injuries were not inflicted in such a way as to authorize an action of that kind to be maintained in favor of either the plaintiff or his tenant. But probably each had his action in the nature of an action on the case for the particular injury suffered by himself. The
The judgment of the court below is affirmed.